This appeal involves a state law claim under Indiana’s Uniform Fraudulent Transfer Act (IUFTA), Ind.Code §§ 32-18-2-1
et seq.
It has long been argued by some that diversity jurisdiction should be limited or even abolished. The proponents of this view argue that the federal courts are overburdened, that they lack expertise in matters of state law and that in most cases, the concern of hometown bias originally driving the establishment of diversity jurisdiction represents no real threat to the parties. While we express no opinion as to whether diversity jurisdiction should be limited generally, we have little doubt that this case would have been better brought in an Indiana state court. This case raises numerous novel questions of Indiana state law, upon which federal courts can provide no more than conjecture as to how the Indiana Supreme Court would hold. The appellee, in oral argument, made it clear that it did not want us to certify any question to the Indiana Supreme Court because of the inevitable delay that would follow. However, it was the appellee that chose to file its complaint in federal court and it was that complaint which sought novel remedies, never previously awarded under Indiana law. R. at 36 (Cplt-¶ 51). Therefore, although we are not fans of delay, it is with limited sympathy that ultimately we must certify several of the questions raised in this appeal to the Indiana Supreme Court.
See Stephan v. Rocky Mountain Chocolate Factory, Inc.,
I. BACKGROUND
On May 15, 1996, Caregivers Plus, Inc. (CPI), a provider of home healthcare ser *341 vices to Medicare recipients and others, entered into a “factoring” agreement with DFS Secured Health Receivables Trust (DFS). App. at 63-115. Under this agreement, DFS purchased “the right to receive the proceeds of collections of Healthcare Receivables payable by Governmental Obligors when such collections [were] received by [CPI]” in exchange for immediate cash payments of 71.5% of the value of these receivables to CPI. Id. at 165. Additionally, under this agreement, CPI was obligated to pay DFS 2.5% interest for each month that receivables made payable to DFS went unpaid. Id. Therefore, in addition to its 28.5% discount on the value of the receivables DFS received, CPI owed DFS 30% annual interest on unpaid receivables. Id. at 165. A Monday morning quarterback might think this a bad deal for CPI, but it was still Sunday morning, and it apparently looked serviceable to CPI at the time.
By February 1997, however, CPI owed DFS approximately $600,000 under this agreement. Id. at 48. On April 4, 1997, DFS filed suit against CPI and its principal, Claudette Harrison, in the Northern District of California to collect the debt. Id. at 49. Before the lawsuit began, Harrison admitted converting $250,000 in receivables that should have been paid to DFS. Id. at 48-49. The parties executed a settlement agreement and the suit was dismissed voluntarily without prejudice. Id. at 394. Following this settlement, DFS continued to purchase CPI’s receivables despite the fact that CPI was constantly in default. Id. at 166. By the end of 1998, CPI’s debt to DFS had grown to approximately $1.7 million. Id. at 53. On February 16, 1999, DFS again filed suit against Harrison, CPI and others in the United States District Court for the Eastern District of California and was granted a default judgment for approximately $1.7 million. Id. at 49-50, 346-47. In the meantime, CPI had fallen into financial distress and its officers were concerned that it would go under by the end of 1998 due to its debts. Id. at 180. CPI’s financial distress was due, in part, to changes in the Medicare program, including the Balanced Budget Act of 1997, which changed the Medicare reimbursement method and led to a 35% drop in spending on home health care agencies that year. Id. at 125. As a result, about one-third of Indiana’s home health care agencies closed in 1998. Id. at 126.
Harrison decided to sell CPI. Id. at 368-69. On December 4, 1998, Marc Leestma, an entrepreneur in the home health care business, executed an asset purchase agreement (APA) for the sale of essentially all of CPI’s assets (Medicare provider number, files, furniture and computers) for $20,000. Id. at 349-54. The APA defined the “buyer” of CPI’s assets as “Marc Leestma or, at his option, a corporation to be formed by him for purposes of this Agreement.” Id. at 349. Under the terms of the APA, the buyer purchased CPI’s assets and was also required to lease specific property, employ various former CPI employees (including Harrison, whose new salary with CGL was to be even higher than it was with CPI) and assume CPI’s equipment leases. Id. at 349, 352. Following execution of the APA, on December 8, 1998, Leestma filed articles of incorporation for Caregivers Great Lakes, Inc. (CGL), to be the “buyer” of CPI’s assets. Id. at 383. On January 8, 1999, CGL paid CPI $20,000 and the transaction was complete. App. at 388. Leestma claims that $20,000 represented the fair market value of CPI and was consistent with other offers Harrison had received during this time period. Id. at 194-95. A jury, however, ultimately found that the fair value for CPI’s assets was actually $470,000. Id. at 301.
*342 Because CGL had purchased CPI’s Medicare provider number, Medicare made payments totaling $489,388 to CGL for services provided by CPI prior to the asset purchase. Id. at 23. DFS claimed based on its May 15, 1996 agreement with CPI that it should have received these reimbursements. On October 1, 1999, DFS filed a complaint in the Northern District of Indiana claiming fraudulent transfer under the IUFTA, as well as, civil and criminal conversion. After a hearing at which the district court found that DFS was the lawful recipient of the Medicare receivables, CGL paid these funds to DFS. Id. at 53.
Nonetheless, DFS maintained its action, claiming that the sale of CPI was a fraudulent attempt to shield CPI’s assets from its creditors (DFS). After the district court dismissed the conversion claims, trial began on May 14, 2001. At the close of trial, the jury found that the “reasonably equivalent value” of the assets transferred to CGL was $470,000 (rather than the $20,000 paid by CGL) and recommended punitive damages of $800,000 against Leestma and $100,000 against CGL. Id. at 301. Because the remedy sought was equitable in nature, the district court treated the jury’s findings as advisory but ultimately adopted its recommendation. Id. at 303, 305-08, 314. On January 9, 2003, after the district court ruled on various post-judgment motions, CGL and Leestma filed a timely notice of appeal.
In this appeal, Leestma and CGL challenge four discrete issues. First, Leestma argues that the district court erred in finding that he could be personally liable under the IUFTA. Second, Leestma argues that DFS did not constitute a “creditor” under the IUFTA because (1) DFS did not obtain its judgment against CPI until after the asset transfer; and (2) its contract with CPI was void since the sale of Medicare receivables is illegal. Third, Leestma argues that a money judgment is not available under the IUFTA when the transferred assets are available for recon-veyance. Finally, Leestma appeals the district court’s award of punitive damages, arguing that such damages are not available under the IUFTA.
II. DISCUSSION
A. Leestma’s personal liability
Leestma argues that the district court erred in holding him personally liable, because under the IUFTA, a judgment may be entered only against a “first transferee” of fraudulently transferred assets or “a person for whose benefit the transfer was made,” and Leestma claims to be neither. See Ind.Code § 32-18-2-18(b)(1). According to Leestma, CGL— the corporation he created to purchase CPI’s assets — was the “first transferee” of those assets, and Leestma acted as a mere agent of CGL. Therefore, he argues that because DFS did not attempt to pierce the corporate veil of CGL, he cannot be held personally liable.
We agree that a “transferee” is one with actual “dominion” or “control” over the assets in question.
See Bonded Fin. Servs., Inc.,
On December 4, 1998, the parties entered into an APA, under which the “buyer,” defined as “Marc Leetsma.[sic] or, at his option, a corporation to be formed by him for purposes of this Agreement,” agreed to purchase CPI’s assets for $20,000. See App. at 349. The district court concluded that because Leestma signed the APA in his own name, he was not an agent and that he personally became the “first transferee” of the assets. See Short App. at 15 (“Evidence supports a finding that Mr. Leestma is personally liable for buying fraudulently discounted assets — it was he who signed the asset purchase agreement — so Mr. Lesstma [sic] is not entitled to dismissal of the fraudulent transfer claim against him.”)
Of course, under Indiana law (and likely in any other state), the mere fact that a person signs an agreement in his own name does not preclude a finding that he signs in an agency capacity.
See, e.g., Stepp v. Duffy,
However, even if CGL were the “first transferee,” it would not alter the outcome in this particular case, because CGL was not legally incorporated until January 1, 1999. See id. at 383 (articles of incorporation signed December 8, 1998, but including a delayed effective date of January 1, 1999); Ind.Code § 23-1-21-3(a); Ind. Enc. Corporations § 8 (“Unless a delayed effective date is specified, a corporation’s existence begins when the arti *344 cles of incorporation are filed.”) (emphasis added). 3 Therefore, there would be no need for DFS to pierce the corporate veil, as CGL was not yet wearing one. Leest-ma could be personally liable whether he was the “first transferee” or not.
Leestma may yet be saved, however, because although the parties had signed the APA, that alone was not enough to cause a “transfer” to occur in this case. An obvious implicit requirement to being a “first transferee” is that a “transfer” of legal rights has taken place.
See Rupp v. Markgraf,
*345
The APA, signed on December 4, 1998, states that “[s]ubject to the terms and conditions hereinafter set forth, the Company agrees to sell assign, transfer and deliver to the Buyer
at the Closing provided for hereafter,
all of the ... assets.” App. at 349 (emphasis added). The APA further states that “[t]he purchase price for the [a]ssets shall be ... in immediately available funds at the [cjlosing.”
Id.
The closing date was set under the APA for December 22,1998.
Id.
at 353. The APA, however, does not suggest that time was of the essence.
See Smith v. Potter,
Further evidence that the parties did not intend an immediate transfer of assets comes from a letter dated December 15, 1998, in which CPI provided the requisite notice to Department of Health and Human Services and indicated that “a new corporation,” CGL was to be the new owner of the Medicare provider number. App. at 385; see also 42 C.F.R. § 489.18(b) (“[a] provider who is contemplating or negotiating a change of ownership must notify” the Department of Health and Human Services) (emphasis added). This letter, dated eleven days after the APA was signed, stated that CPI was “in the process of selling its assets” rather than that it had sold its assets. App. at 385 (emphasis added).
Because the APA was an executory contract not governed by the UCC, neither Leestma nor CGL was given ownership in or the legal right to control any asset under the APA until the parties so intended.
5
See First Nat’l Bank v. Smoker,
Although the closing was originally scheduled by the APA to take place on December 22, 1998, it appears that nothing actually happened on that date.
See
Tr. Vol. 3 at 130. The record is devoid of information about when any of the tangible assets were physically transferred but, in any case, it is the legal right to control the asset, not physical possession, which matters under
Bonded Financial Services. See
The fact that Leestma is not the “first transferee” under the IUFTA, however, does not necessarily mean that the only way he can be personally liable is by piercing CGL’s corporate veil. Under Indiana state law, an officer or shareholder of a corporation can be held individually liable, without the need to pierce the corporate veil, if he personally participates in the fraud.
See State Civil Rights Comm’n v. County Line Park, Inc.,
No court has yet considered whether this Indiana common law rule can be applied to the IUFTA.
7
There is good reason to believe it would apply, however. First, Indiana seems to treat claims under the IUFTA as a type of fraud claim.
See, e.g., Fire Police City County Federal Credit Union v. Eagle,
At least one state with a similar common law rule, however, has declined to hold an officer who personally participated in
*348
fraud liable under the UFTA.
See Kondracky v. Crystal Restoration, Inc.,
We do not share the concerns of the Rhode Island District Court, at least with respect to this case. The cases upon which it relies do not involve officers, directors or shareholders of the “first transferee,” who personally participated in the fraud. Instead, they involve novel claims of accessory, conspiracy or aiding and abetting liability under the UFTA.
See Lowell Staats Mining Co. v. Phila. Elec. Co.,
In contrast, we are aware of no case suggesting that “veil piercing” is impermissible under the UFTA.
8
Liability for officers or shareholders of a “first transferee” who personally participated in the fraud is a substitute for “veil piercing,” not an extension of who can be a “transferee” under the UFTA. Moreover, the reasoning behind the general rule that courts should avoid extending the parties who can be a “transferee” under the UFTA appears to be based, at least in part, on the difficulty of proving damages.
See Duell v. Brewer,
Finally, this case is somewhat unique in that, because punitive damages were sought (rightly or wrongly), we have an actual jury finding that Leestma personally participated in fraudulent conduct, in addition to the general finding of liability under the UFTA. App. at 312 (“In deciding the issue of punitive damages, though, the jury found by clear and convincing evidence that both defendants [Leestma and CGL] acted with malice, fraud, gross negligence, or oppressiveness.”) (emphasis added); App. at 302 (verdict form). Therefore, we see no reason that the rule should not be extended in this case.
*349 Nonetheless, given that we cannot avoid certifying two other questions to the Indiana Supreme Court (see infra), .in an abundance of caution, we do so here as well. Therefore, we hereby certify to the Indiana Supreme Court the question whether an officer or director of a “first transferee” under the IUFTA who is found to have personally participated in the fraud can be held personally liable under Indiana law on that basis alone.
B.. DFS as “creditor”
The appellants’ second argument is that the district court erred in finding DFS to be a “creditor” under the IUFTA. According to the appellants, DFS was not a “creditor” under the IUFTA because (1) DFS did not obtain its judgment against CPI until after the asset transfer; and (2) its contract with CPI was void as the sale of Medicare receivables is illegal. Leestma Br. at 50-51. Both arguments are without merit.
We start with the appellants’ argument that DFS is not a “creditor” because DFS did not obtain its judgment against CPI until after the asset transfer. The appellants’ argument, properly articulated, does not have to do with whether DFS is a “creditor” as defined under section 4 of the IUFTA, but whether DFS is a “present creditor” under section 15 of the IUFTA (“Transfers fraudulent as to present creditors”). Reply Br. at 21. Section 15 notes that “[a] transfer made or an obligation incurred by a debtor is fraudulent as to a creditor whose claim arose before the transfer was made or the obligation was incurred” if certain specified conditions are met. Ind.Code § 32-18-2-15 (emphasis added).
Although DFS did not receive a court judgment until after the asset transfer, the court judgment simply made official the obligation with respect to which DFS had been trying to recover long before the asset transfer. The appellants have presented no evidénce to suggest that this debt did not arise before the fraudulent transfer. The IUFTA definition of a “claim” makes it clear that a “claim” is a right to payment “whether the right is reduced to judgment or not....” Id. at 32-18-2-3. Therefore, the fact that DFS did not receive a court judgment until after the asset transfer is not relevant to the inquiry.
Nor did the district court err in considering'the court judgment in deciding that DFS was a “present creditor” under the IUFTA, given that the judgment evidenced the pre-existing debt and the appellants presented no evidence to the contrary. In fact, it appears that the appellants never made the argument below that DFS’s claim did not arise before the transfer or that DFS was not a “present creditor.”
See
Reply Br. at 20. This argument is -raised for the first time on appeal and is thus waived.
See Murphy v.
Keystone,
Steel & Wire Co.,
With respect to the appellants’ second contention, they argue that DFS’s contract with CPI, in which DFS purchased “the right to receive the proceeds of collections of Healthcare Receivables payable by Governmental ■ Obligors- when such collections *350 [were] received by Provider” is void for illegality. App. at 115. Essentially, the appellants’ argument is that the “factoring” agreement violates 42 U.S.C. § 1395g(c) which states that “no payment which may be made to a provider of services under this title ... for any service furnished to an individual shall be made to any other person under an assignment or power of attorney .... ” See also 42 U.S.C. § 1396a(a)(32); 42 CFR § 424.73. Although it is reassuring to see that at least one issue of federal law managed to creep its way into this appeal, the appellants’ argument is without merit.
On its face, this statute stands only for the proposition that Medicare funds cannot be paid directly by the government to someone other than the provider, but it does not prohibit a third party from receiving Medicare funds if they first flow through the provider. Before this statute, health care providers assigned their right to Medicare receivables to third parties which then submitted incorrect and inflated claims to be paid in their own names, creating administrative nightmares and overpayments in excess of one million dollars. H.R. Rep. NO. 92-231 (1972), reprinted in 1972 U.S.C.C.A.N. 4989, 5090. Therefore, Congress passed this statute to remedy this problem by ensuring that payments would be made directly to healthcare providers. However, nothing suggests that Congress intended to prevent healthcare providers from assigning receivables to a non-provider. Id. (“[The] committee’s bill would not preclude a physician or other person who provided the services and accepted an assignment from having the payment mailed to anyone or any organization he wishes, but the payment would be to him in his name.”).
The appellants cite no case and we have uncovered none, which interprets this statute to prohibit a provider’s assignment of Medicare or Medicaid receivables to a non-provider. If anything, case law suggests the opposite.
See, e.g., In re Missionary Baptist Found. of Am.,
In any case, it is doubtful that Leestma and CGL, non-parties to this fully execut
*351
ed contract, have standing at this late date to argue that the contract is void for illegality. The appellants draw our attention to “the general rule” stated in Corpus Juris Secundum that “when for any reason the judgment against the grantor is invalid the grantee may show its invalidity in a proceeding to set aside the conveyance as fraudulent.” Reply Br. at 22 (quoting 37 C.J.S. Fraudulent Conveyances § 257). The appellants, however, cite no law from Indiana, and it is not obvious that Indiana’s rule would necessarily mirror the rule stated in Corpus Juris or that it would apply specifically to “illegal” contracts.
See Stolz-Wicks, Inc. v. Commercial Television Serv. Co.,
Where the judgment against the debtor has been rendered in the regular course of judicial proceedings by a court of competent jurisdiction and it cannot be objected to on the ground that it was obtained by fraud or collusion, it is, whether rendered on default or after contest, conclusive as to the relation of debtor and creditor between the parties and the amount of the indebtedness, and cannot be collaterally impeached by the grantee of the debtor in a suit to set aside the conveyance as fraudulent.
37 C.J.S. Fraudulent Conveyances § 257 (emphasis added). Here, the judgment against CPI was rendered in the course of a judicial proceeding. The appellants do not argue that the court that rendered the judgment lacked jurisdiction, that there were defects in the proceedings or that the judgment was obtained by fraud or collusion. Therefore the appellants present no basis upon which the judgment can be attacked.
See Scott v. Indianapolis Wagon Works,
Finally, as a technical matter, even if the appellants had standing to attack the validity of this contract, this would not change DFS’s status as a “creditor” under the IUFTA. A “creditor” with a colorable claim cannot lose its status as “creditor” under the IUFTA simply because the debtor or a third-party has a *352 legal defense to the claim. The statute itself defines “creditor” as “a person who has a claim,” Ind.Code § 32-18-2-4, and notes that a “claim” under the statute “means a right to payment, whether the right is ... disputed or undisputed .... ” Id. at 32-18-2-3. Therefore, the fact that the appellants may dispute the claim would not change DFS’s status as a “creditor.”
C. Money damages under the IUFTA
The appellants’ next argument is that a money judgment is not available under the IUFTA when the transferred assets are available for reconveyance. 10 Leestma Br. at 30. The IUFTA specifically discusses the “[Remedies of a creditor” and notes that:
(a) In an action for relief against a transfer or an obligation under this chapter, a creditor, subject to the limitations in section 18 of this chapter, may obtain any of the following:
(1)Avoidance of the transfer or obligation to the extent necessary to satisfy the creditor’s claim.
(2) An attachment or other provisional remedy against the asset transferred or other property of the transferee in accordance with the procedure prescribed by IC 34-25-2-1 or any other applicable statute providing for attachment or other provisional remedy against debtors generally.
(3) Subject to applicable principles of equity and in accordance with applicable rules of civil procedure, any of the following:
(A) An injunction against further disposition by the debtor or a transferee, or both, of the asset transferred, its proceeds, or of other property.
(B) Appointment of a receiver to take charge of the asset transferred or of the property of the transferee.
(C) Any other relief the circumstances require.
(b) If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court orders, may levy *353 execution on the asset transferred or its proceeds.
Ind.Code. § 32-18-2-17 (emphasis added). Although the section specifically discusses only remedies which are equitable in nature, the catchall provision (allowing a creditor to obtain “any other relief the circumstances require”) would seemingly empower a court to provide monetary relief at its discretion.
See, e.g., Freeman v. First Union Nat’l,
The next section of the IUFTA discusses a “[t]ransferee’s defenses, liability, and protections” and notes that:
(b) Except as otherwise provided in this chapter, to the extent a transfer is voidable in an action by a creditor under section 17(a)(1) of this chapter, the creditor may recover judgment for the value of the asset transferred, as adjusted under subsection (c), or the amount necessary to satisfy the creditor’s claim, whichever is less ....
(c) If the judgment under subsection (b) is based upon the value of the asset transferred, the judgment must be for an amount equal to the value of the asset at the time of the transfer, subject to adjustment as the equities may require.
Ind.Code. § 32-18-2-18 (emphasis added). Similarly, we find no language in this section expressly limiting a court’s ability to award monetary damages to the situation in which the assets are unavailable for reconveyance. The appellants argue that the phrase “[ejxcept as otherwise provided in this chapter” should be read as referring to section 17, and should thus be understood to mean that monetary damages are not available if equitable relief is available under section 17. We do not find this to be a plausible reading of the statute.
First, it is curious that, if the drafters intended this language in section 18 to mean that monetary damages are not available where equitable relief is available under section 17, they would not just have written “except as otherwise provided in
section 17”
or “to the extent sufficient equitable relief is unavailable.” Second, it seems odd that the drafters would state “except as otherwise
provided
” rather than “except as otherwise
available.”
The use of the word “provided” suggests that monetary relief could be awarded instead of equitable relief, so long as the court has not awarded equitable relief. Third, because section 17 allows for “any other relief the circumstances require,” allowing monetary relief under section 18 “except
*354
as otherwise provided in [section 17]” would seemingly provide no real limitation on the court, and allowing monetary relief “except as otherwise
available
in [section 17]” would seemingly mean that no relief could ever be awarded under section 18. Finally, under the appellants’ interpretation of the “except as otherwise provided” clause, if a court ordered that assets be reconveyed under section 17, but the assets had seriously depreciated in value since the time of the fraudulent transfer, the statute would seemingly not allow for an award of any additional monetary damages to make up the difference. This would contradict the holding of even those cases upon which the appellants rely.
See, e.g., Robinson v. Coughlin,
Nonetheless, we are aware of no reported cases in which monetary damages were awarded under the IUFTA, and courts such as
Robinson
have held under their state version of the UFTA that monetary damage awards are only appropriate where reconveyance of the fraudulently transferred property is impossible or where the subject property has depreciated in value. Policy considerations would support such a rule, as it would avoid speculation as to the value of conveyed assets.
See, e.g., In re Vedaa,
D. Punitive damages under the IUFTA
Finally, the appellants appeal the district court’s award of punitive damages, arguing that such damages are not available under the IUFTA. Yet a straightforward reading of the IUFTA’s catchall provision would seemingly allow for punitive damages.
See
Ind.Code. § 32-18-2-17(c) (allowing a court to award “any other relief the circumstances require”). Moreover, as noted earlier, the IUFTA incorporates principles of state common law. Ind.Code § 32-18-2-20. Under Indiana law, tortious conduct involving “malice, fraud, gross negligence, or oppressiveness which was not the result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or other human failing” may be punished by an award of punitive damages.
Erie Ins. Co. v. Hickman,
No Indiana court, however, has addressed the question whether punitive damages can be awarded under the IUF-TA, and other states are split on the question.
Compare Macris & Assocs., Inc. v. Neways, Inc.,
Leestma argues that the Indiana Supreme Court would conclude that punitive damages are not recoverable under the IUFTA because Indiana construes statutory remedies narrowly and only allows for punitive damages when the legislature expressly includes them in the statute. Leestma Br. at 43-45. However, in none of the cases cited by Leestma did the statute in question contain anything like the catchall provision which is present in the IUFTA.
See Forte v. Connerwood Healthcare, Inc.,
III. CONCLUSION
In conclusion, we certify the following three questions to the Indiana Supreme Court:
(1) Can an officer or director of a “first transferee” under the IUFTA who is found to have personally participated in the fraud be held personally liable under Indiana law on that basis alone?
(2) Is an award of monetary damages under the IUFTA available only where reconveyance of the fraudulently transferred property is impossible or where the subject property has depreciated in value?
(3) Are punitive damages available under the IUFTA?
We invite, of course, the Justices of the Indiana Supreme Court to reformulate our questions if they feel that course is appropriate. We do not intend anything in this certification, including our statement of the questions, to limit the scope of their inquiry. Further proceedings in this court are stayed while the Indiana Supreme Court considers this certification.
Notes
. The IUFTA does not define the term "transferee.” The historical notes to the IUFTA indicate that the relevant section is based on § 8 of the Uniform Fraudulent Transfer Act (UFTA).
See
UFTA (U.L.A.) § 8, cmt. 1;
see also Baker O’Neal Holdings, Inc. v. Ernst & Young LLP,
No. 1:03-CV-0123-DFH,
. It is not clear whether these attachments were executed contemporaneously with the APA (it appears that at least the typed “Marc Leetsma [sic], President” line was present on December 4, 1998), but that is not relevant because they were incorporated by reference into the APA, regardless whether they were executed subsequently thereto.
. Leestma properly has not argued that CGL was a
de facto
corporation under Indiana law beginning on December 8, 1998, when he signed and presumably filed CGL’s articles of incorporation.
See
Ind. Enc. Corporations § 9 (defining a
de facto
corporation as "one which exists for all practical purposes, but is not strictly speaking a legal corporation because of a failure to comply with some legal formality in organization”). Such argument would be unavailing. Of course, if the transfer occurred on December 4, 1998, which is implicit in the district court’s holding (though incorrect), this argument would be of no help to Leestma because he would have had control of the assets on December 4,1998 — four days before even
de facto
status. Regardless, we do not believe that signing the articles of incorporation was enough to create a
de facto
corporation under Indiana law, where the incorporator and sole shareholder (Leestma) clearly intended that incorporation be effective at a later date.
See, e.g., Sunman-Dear-bom Cmty. Sch. Corp. v. Kral-Zepf-Freitag & Assocs.,
. One might think that the logical way to decide when this transfer was made would be by considering the IUFTA section titled "when a transfer is made.”
See
Ind.Code § 32-18-2-16. This approach is wrong, however, as that section is intended to be used to determine when a cause of action arises and provides
no
useful answer in this case.
Cf.
UFTA § 6, cmt. 1. According to this section, a transfer is made with respect to an asset that is not real property "when the transfer is so far perfected that a creditor on a simple contract cannot acquire a judicial lien (other than under this chapter) that is superior to the interest of the transferee.” Ind.Code § 32-18-2-16. Although the term "perfected” is not defined, the comments to the UFTA suggest that the parties are to look to Article 9 of the Uniform Commercial Code (UCC) for guidance as to the meaning of the term.
See
UFTA § 6, cmt. 1. The valuable assets in this case would be considered "general intangibles” under Indiana’s version of Article 9 of the UCC.
See
Ind.Code § 26-1-9.1-102(a)(42);
In re Leasing Consultants Inc.,
. We need not consider how this agreement might be interpreted under the UCC, as the UCC does not apply to this contract for the sale of a business containing predominantly intangible assets, such as a governmental license and goodwill.
See Insul-Mark Midwest, Inc. v. Modern Materials, Inc.,
. The only evidence presented to suggest that Leestma or CGL took physical possession of any asset before December 22 was the following testimony from trial. Leestma was asked: "After you signed the Asset Purchase Agreement on December 4th of 1998, there was actually no closing. Was there?” Leestma responded: "I think about the only thing that remained to be done was the passing of the check, to pay the money.” Tr. Vol. 3 at 130. This is, at best, weak evidence that there was a physical transfer of assets before December 22. If anything, it simply reinforces the idea that the parties defined the closing as the time at which consideration would be paid.
. We believe that
Stepp,
. Leestma, in fact, concedes that veil piercing is permissible under the UFTA. See Leestma Br. at 29.
. The cases from other jurisdictions upon which the appellants rely are distinguishable in that they fit into the exception discussed in Corpus Juris. Reply Br. at 22, citing
Reyburn v. Spires,
. During the pendency of this appeal, we remanded this case to the district court "for the limited purposes of determining whether voiding the transfer and reconveying the transferred assets would provide adequate remedy in lieu of monetary damages.” In an order dated July 12, 2004, the district court responded and indicated its belief that recon-veyance would not provide an adequate remedy because (a) reconveyance would simply shift the assets from CGL to CPI (rather than DFS); (b) CPI may not remain in existence and even if it does, it may not be in the home health care business; and (c) DFS is not in the home health care business. In hindsight, it appears that our instructions may have been unclear. Our question assumed that under the IUFTA a court could order the assets to be conveyed directly to DFS or could be held for DFS’s benefit — an assumption neither party contested on appeal. See Leestma Br. at 33 ("[T]he assets were and are available to be returned to CPI for the benefit of DFS”); DFS Br. at 14-25. Therefore, we were simply asking for a factual finding as to whether the assets are available in substantially the same form as they were when they were transferred. If they are, we see no reason that the Court cannot order that they be transferred to DFS or held for the benefit of DFS. The fact that DFS is not in the home health care business is irrelevant because nothing would prevent DFS from selling the assets at their discrete value. Surely the market can better assess the value of these assets than can the parties’ expert economists. However, we will not delay the case by a second remand to the district court for further factual findings. We thus assume for now that the assets are available in substantially the same form as they were when they were transferred. If the Indiana Supreme Court determines that conveyance of the assets to DFS is the preferred remedy, we may then remand to the district court to further address this question as necessary.